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Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Intellectual property law truly is incorporated in every aspect of society and the issue of lacking creativity in designing sports bras and leggings only reassures that statement. On November 24, 2021, , known for its interactive exercise bike, sued . Peloton seeks a that its new clothing design does not infringe on ���ܱ��ܱ��𳾴Dz�’s design patent.

This lawsuit comes after Lululemon, known for its athletic apparel and technical clothing, wrote a letter dated November 11, 2021, to Peloton threatening to sue if they do not stop selling specific items from its new clothing line. It only took five days for Lululemon to follow through with its threat and Peloton for infringing on its design patents.

Peloton and Lululemon have a long history with each other. The two companies had a co-branding relationship for , where Peloton agreed to make and put their branding on wholesale purchases of ���ܱ��ܱ��𳾴Dz�’s apparel. This agreement ended earlier this year “” as Peloton commented that the process was not efficient for the high demands it experienced. The end of this partnership led to Peloton releasing its own clothing in September 2021, from which Lululemon alleges multiple copies of its clothing designs.

As of now, Lululemon claims that Peloton has infringed on six of their patent designs with these articles of clothing: the Cadent Laser Dot Bra, the Strappy Bra, the Cadent Peak Bra, the High Neck Bra, and the Cadent Laser Dot Leggings. Peloton has responded to these claims saying that Lululemon “.” Peloton says that their clothing designs are easy to distinguish from ���ܱ��ܱ��𳾴Dz�’s designs and that Lululemon does not deserve patent protection for their “” designs.

Following up with its claim, Lululemon says that “.” Lululemon is also claiming that instead of responding to its November 11 letter, .

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���ܱ��ܱ��𳾴Dz�’s against Peloton make the designs seem somewhat similar; however, the designs are simple enough that patent protection may be an extreme case. With that said, it will be interesting to see the outcome of these cases as the comments from both parties don’t seem relatively “” at this point.

The post Breaking a Sweat Over Patents: Lululemon and Peloton’s Competing Lawsuits appeared first on IPOsgoode.

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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School. 

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Fan culture, or “fandom”, is a term used to describe a community of fans built around a shared enjoyment of a particular piece of pop culture. Members of fandoms often participate in various creative activities inspired by their source material, including dressing up as the characters, writing stories based in the fictional universe, and making drawings about the original work.

While most creators support fandoms, with some even , the line between appreciating a creator’s work and copying can be blurred. What may seem like a harmless activity in the spirit of fandom can at times give rise to copyright infringement.��

Cosplay

(or “costume play”) is the act of dressing up as a character, often from anime, video games, comics, television, or film. Though the term dates back to the 1980s, the practice has existed for centuries. It is often associated with , where fans attend in the masses, taking on characters from popular franchises such as Doctor Who, Star Wars, and Marvel movies to the animated universes of �ʴǰ�é���Dz�, Naruto, Final Fantasy, and beyond.��

This year, Japan made by proposing a new law that could potentially create copyright infringement problems for cosplayers. In Japan, cosplay can be a fruitful endeavour, with successful professional cosplayers earning upwards of $90,000 a month from public appearances, merchandise, photo books, and more. Japan’s proposed new law would require professional cosplayers to pay a fee to the creators of the characters they cosplay in specific circumstances (, when appearing as a character for an event or on television).

Luckily for most cosplayers, their costumes likely do not infringe copyright laws. In both the and , given their classification as “useful articles.” Although there are complexities—for example, and —replicating costumes, for the most part, is a liability-free activity. Even if copyright subsists in some features of the costume, reproducing these elements for personal, non-commercial purposes is permissible in both and the .

Fanfiction and Fanart

Fanfiction and fanart are other popular forms of fan expression. As the name suggests, fanfiction and fanart are content by fans based on existing works of fiction.

Though fanfiction and fanart have arguably been around as long as fiction, with authors and artists drawing inspiration from one another, the of the activities as expressions of fandom arose in the 1960s via Trekkies (fans of Star Trek).

Unfortunately, laws around fanfiction and fanart are not clear. In the United States, copyright holders have the sole right to , including major copyrightable elements of an original, previously created work. lacks an analogous provision but does have other provisions under that offers rights holders similar protection, such as the sole right to publish any translation of the work or convert the work into other forms. However, users’ rights provisions ( in the United States and in Canada) may provide a legal basis for fan creations to exist. A fairness assessment may consider relevant factors like commercialization, amount and substantiality of the copied work, and how “transformative” the fan-made work is. Fans may not even have to avail to fairness assessments by arguing that their fan creations are sufficiently original. As it is well-established that authors do not have copyright protection in facts and ideas, including , fans may argue that their works contain only the underlying, non-copyrightable elements from the source material.

While the law surrounding fanfiction and fanart is still grey, authors’ views on the subject are divided. Some authors, most notably the late and , strongly oppose fanfiction, believing it to be copyright infringement. The majority, however, see fan-made content as a form of , and essentially, free advertising for the original work. The author of the famed Twilight series, Stephenie Meyer, was known for and , which originated as a Twilight fanfic.��

Despite the legal uncertainty, fanfiction and fanart continue to rise. The ubiquity of fanfiction and fanart combined with high litigation costs may deter the small minority of authors and publishers who dislike the practice from launching lawsuits. After all, suing your fans isn’t the best way to earn their support.

The post Keep Calm and Fandom On: Copyright in Cosplay, Fanfiction, and Fanart appeared first on IPOsgoode.